State aid in the area of Transport

Transcription

1 State aid in the area of Transport 1

2 Overview I Context II - Procedure II - State aid rules in the area of transport IV- Public Service Obligations V State aid to maritime and aviation 2

3 I Context 3

4 Treaty articles The three State aid articles of the EC Treaty Art 87: Principle of prohibition with exceptions Art 88: Procedures Art 89: Application and exemption rules 4

5 The principle Principe of prohibition of State aid - Art 87(1) Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market. 5

6 What is an aid? The 4 criteria: Definition of State aid (1) 1- State resources 2- Confers an advantage to an undertaking 3- Distortion of competition 4 - Affect trade between Member States 6

7 Definition of State aid State resources Public or private bodies designated or established by the State and controlled by it. Resources under public control (regional and local authorities, public undertakings) Imputable to the State (Stardust,C 482/99, PreussenElektra, C 379/98) 7

8 Definition of State aid Advantage to an undertaking Selectivity and gratuitous benefit compared to competitors Any entity (public or private) carrying out an economic activity Offering goods or services on a market Independent of legal status and financing mode Profit orientation irrelevant (C-82/01P, Aeroport de Paris) 8

9 Distortion of competition Gratuitous advantage as compared to competitors for free or without adequate counterpart Affect the competitive situation on any given market General measures 9

10 Affect trade between Member States Involved in an economic sector open to intra-community trade Open and liberalised market Community legislation National legislation Practical market opening (C-280/00, Altmark) 10

11 What aid is compatible? 1 - Aid where the Commission has no discretion (Art 87.2 or Art 73) a) aid of a social character b) aid to make good natural disasters or exceptional occurrences c) aid related to the division of Germany 11

12 What aid is compatible? 2 Potentially compatible aid (art 87.3) (a) aid to promote economic development of areas where the standard of living is abnormally low/serious underemployment; (b) aid to promote projects of common European interest or to remedy serious economic disturbance; (c) aid to facilitate development of certain economic activities or of certain economic areas, where such aid go against the common interest; (d) aid to promote culture and heritage conservation; (e) such other categories as specified by the Council 12

13 II-The rules of procedure 13

14 Procedure Legal basis: Article 89 Council Regulation 659/1999 of 22 March procedural regulation Commission Regulation 794/2004 of 21 April Notification regulation 14

15 Exemption regulations The council may exempt certain categories of aid Legal basis: Art 89 Empowerment Regulation: Council Regulation 994/98 4 Regulations put in place by Commission to date Training aid: Commission Regulation 68/2001 de minimis: Commission Regulation 69/2001 SME aid: Commission Regulation 70/2001 Employment aid: Commission Regulation 2004/2002 Council Regulation 1191/69 for PSO compensation Council Regulation 1107/70 for certain aid to co-ordinate transport 15

16 Horizontal texts and Transport state aid All horizontal texts applicable to state aid apply also to state aid in the field of transport - except for the De minimis exemption Regulation this may change in the near future but there will be no aid possible for mobile assets 16

17 III- The applicable State aid rules in the area of transport 17

18 Liberalisation of transport markets Road Freight: Intra-Community: from 1993 Cabotage: from mid Public Passenger transport: From 1995 on basis of national law (C-280/00, Altmark ruling) Inland Waterways From 1999 Railways 1st Packet: (separate accounts): from 1/1/1993 2nd Packet: freight 2003 and passengers

19 Liberalisation of transport markets Maritime 1st packet: liberalisation of intra- Community and international traffic between 1990 & nd packet: liberalisation of cabotage traffic between 1993 & 1999 Aviation 3rd packet: from 1/1/1993 Cabotage from 1/4/

20 The two legal bases in transport Art 73 Art 87.3.c The following aid is compatible with the Treaty: -that which deals with the need to co-ordinate transport (Rg. 1107/70) or that which corresponds to compensation for certain obligations inherent in the concept of public service (Reg. 1191/69 May be considered compatible with the common market: aid destined to develop certain activities when they do not affect trade to an extent contrary to the common interest 20

21 IV Public Service Obligations 21

22 No aid, if Altmark Court of Justice Altmark 24/7/03: compensation for additional costs + 4 conditions = not aid The 4 conditions of the Altmark judgement 1) The PSOs have to be defined 2) The calculation method has to be established 3) Compensation has to be limited to costs borne 4) Public tender or benchmarking with an average company 22

23 Compatibility Based on Regulation 1191/69/EC Two scenarios to be distinguished: - Public Service Obligation imposed - Public Service Contract Based on Regulation 1107/70/EC Art. 3(2) sets out conditions 23

24 Regulation 1191/69/EC This Regulation: Defines a PSO= an obligation which, if the operator was motivated only by its own interest would not undertake or would not undertake in the same way or under the same conditions (section I, Article 2) Distinguishes between public service obligation imposed upon an operator by the State (section II to IV) and public service contracts (section V) 24

25 Compensation for an imposed PSO Compensation for an imposed PSO: Chapter IV of Regulation 1191/69 Additional costs of carrying out the PSO will be reimbursed (Art.10 (1) & ( 2) & Art.11) 25

26 Compensation for an imposed PSO General provisions: Art. 12: Costs resulting from the maintenance of obligations shall be calculated on the basis of efficient management of the undertaking and the provision of transport services of an adequate quality. Art. 17(2): exemption from the notification requirement for compensation payments under chapter IV. 26

27 Public Service Contract Article 14 defines the public service contract: 1. A public service contract' shall mean a contract concluded between the competent authorities of a Member State and a transport undertaking in order to provide the public with adequate transport services. A public service contract may cover notably: transport services satisfying fixed standards of continuity, regularity, capacity and quality, additional transport services, transport services at specified rates and subject to specified conditions, in particular for certain categories of passenger or on certain routes, adjustments of services to actual requirements. 27

28 Public Service Contracts Notification of public service contracts? This question has not been addressed by Regulation 1191/69/EC. Accordingly: If the contract fulfils the Altmark criteria, there is no need for a notification. Otherwise: Notification necessary, as the exemption of Article 17(2) refers only to compensation for imposed PSOs. 28

29 Regulation 1191/69/EC General considerations: Regulation 1191/69 was the first to define and establish rules for PSOs in land transport. It was modified in 1991 in order to introduce the public service contract. The Commission has presented a proposal to modify this Regulation. The Council has reached a common position early 29

30 Regulation 1107/70/EC Article 3(2): Member States shall neither take coordination measures nor impose obligations inherent in the concept of a public service which involve the granting of aids pursuant to Article 77 of the Treaty except in the following cases or circumstances: As regards reimbursement for the discharge of obligations inherent in the concept of a public service: until the entry into force of relevant Community rules, where payments are made to rail, road or inland waterway transport undertakings as compensation for public service obligations imposed on them by the State or public authorities and covering either: tariff obligations not falling within the definition given in Article 2 (5) of Regulation (EEC) No 1191/69; or transport undertakings or activities to which that Regulation does not apply. 30

31 Combined Transport Since 1997 the legal basis is article 87(3)(c) Conditions for authorising the aid: Intensity limited to the strict necessary Only equipment to be used specifically in combined transport operation is eligible Aid granted to an infrastructure manager provided: The aid is necessary to enable the realisation of the project It is proportional (30% of eligible costs) The access is open to all potential users on a non-discriminatory basis Does not give rise to distortion of competition to an extent contrary to the common interest 31

32 V State aid to maritime and aviation transport 32

33 Maritime Transport Maritime Guidelines 1997 & 2004 The idea is to prevent flagging out and retain a Community fleet Reductions in taxes Symbolic tax on ship-owning companies: Tonnage Tax Reduction in or exemptions from social charges Reductions in or exemptions from seafarer s income tax In addition, Community rules: Allow for certain other types of operating aid permit crew relief up to 50% of costs permit start-up aid for short sea shipping 33

34 Aviation Transport Aviation Guidelines 1994 The General Rule: no aid allowed Except in the following circumstances: Rescue and restructuring of State owned chronically indebted companies under certain circumstances One time last time Aid for PSOs Aid of a social character Aid for local companies in ultra-peripheral regions 34

35 Aviation Transport Aviation Guidelines 2005 General context Liberalisation measures leading to significant change on the market Increased competitive environment Airports run as economic entities Emergence of low-cost carriers Emergence of secondary/regional airports Point-to point services vs; hub-and-spoke 35

36 Aviation Transport Aviation Guidelines 2005 Objectives Update/clarification of 1994 Guidelines Respect of EU State aid rules Legal certainty and equality of treatment Alleviate air traffic congestion at major hubs Optimise use of infrastructure Increase mobility and connectivity Scope Financing of airports Start-up aid 36

37 Aviation Transport Aviation Guidelines 2005 Financing of airports Construction of airport infrastructure Investment aid (cf. Elba airport, German airports) Operation of airport infrastructure Operating aid / Public services (Altmark) Airport services Operating aid (public policy remit/commercial activities) Other commercial activities not directly linked to aviation 37

38 Aviation Transport Aviation Guidelines 2005 Start-up aid =Operating aid Normally prohibited except for exceptional and duly justified cases under strict conditions Air carriers holding a valid operating license issued by a Member State Intra-Community routes New routes or new schedules 3 years start-up period (5 years for ultra-peripheral and poorer regions) 30% over 3 years - more for ultra-peripheral and poorer regions -max 50% Limited to additional start-up costs (marketing, installation etc) Linked to passenger development Airports up to 5 million passengers (5-10 million pax airports must show need) Viability - business plan (and impact assessment) Publicity 38

39 Thank you for your attention 39